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E. Application of international and comparative principles to the American Convention

1. Background principles for interpreting the American Convention

34. While the jurisprudence of other legal systems can provide valuable guidance for the interpretation of the American Convention, and it has been frequently cited by the Inter-American Commission and the Inter-American Court, it is important to underscore the limits of this approach. The application of legal principles from the United Nations and the European Union to an analysis of the American Convention should not be allowed to chip away at the core freedoms guaranteed by the Convention. This has particular relevance in the case of the ICCPR, which has been ratified by some 30 nations in the Americas. The Inter-American Court has noted the following with respect to the simultaneous application of international treaties:

It is true, of course, that it is frequently useful . . . to compare the American Convention with the provisions of other international instruments in order to stress certain aspects concerning the manner in which a certain right has been formulated, but that approach should never be used to read into the Convention restrictions that are not grounded in its text. This is true even if these restrictions exist in another international treaty.[1]

35. The Inter-American Court went on to say that if both the American Convention and another international treaty are applicable, “the rule most favorable to the individual must prevail.”[2] The Court further noted that because the American Convention stipulates that its provisions should not have a “restrictive effect” on rights laid out in other international instruments, “it makes even less sense to invoke restrictions contained in those other international instruments, but which are not found in the Convention, to limit the exercise of the rights and freedoms that the latter recognizes.”[3]

36. Article 13 as a whole also contains concrete provisions governing restrictions on expression, and such provisions take precedence over the conclusions drawn from the jurisprudence of other legal systems when evaluating paragraph 5’s ban on “advocacy of national, racial or religious hatred that constitute incitement to violence.” The Inter-American Court in the Case of the Last Temptation of Christ, for example, noted that paragraph 4 “establishes an exception to prior censorship, since it allows it in the case of public entertainment, but only in order to regulate access for the moral protection of children and adolescents,” so for “all other cases, any preventive measure implies the impairment of freedom of thought and expression.”[4] This means that restrictions on freedom of expression can be made only through subsequent imposition of sanctions for those guilty of abusing this freedom, and the subsequent liability must meet four requirements, according to the Inter-American Court:

a) the existence of previously established grounds for liability;

b) the express and precise definition of these grounds by law;

c) the legitimacy of the ends sought to be achieved

d) a showing that these grounds of liability are “necessary to ensure” the aforementioned ends[5]

37. It would appear at first glance that the ban on censorship would extend to hate speech in the same way it covers the restrictions on freedom of expression laid out in paragraph 2. But because there is a discrepancy between the English and Spanish language versions of the text of Article 13, the issue requires further analysis.

38. In English, as noted previously, the text of paragraph 5 provides that hate speech “shall be considered as offenses punishable by law,”[6] which implies that hate speech can be regulated through the subsequent imposition of liability. In Spanish, however, the same paragraph provides that hate speech “estará prohibida por la ley,”[7] which suggests that hate speech–given that it must be “prohibited”–can be regulated through censorship. The Inter-American Commission, citing a decision from the Inter-American Court, has noted that linguistic differences must be resolved through the various means of interpretation available in international law, including the general and supplementary rules of interpretation that are expressed in Articles 31 and 32 of the Vienna Convention of the Law of Treaties.[8] A full examination of the text of Article 13, therefore, can help to shed light on the exact meaning of paragraph 5. In the Spanish version of the American Convention, paragraph 4 of Article 13 states that public entertainments may be subject to law by prior censorship only for the moral protection of children, “sin perjuicio de lo establecido en el inciso 2.”[9]This reference to paragraph 2 is similar to the English text, which says “notwithstanding the provisions of paragraph 2,[10] and both imply that paragraph 4 was meant to be an exception to paragraph 2. Since paragraph 5 makes no similar exception to paragraph 2 in either Spanish or English, it follows that hate speech is governed by paragraph 2’s imposition of subsequent liability. This view is further supported by the Inter-American Court’s emphatic view that censorship is only allowed for the purposes stated in paragraph 4. As noted above, the Court, in its decision in the Case of the Last Temptation of Christ, noted that all preventive measures except those provided for in paragraph 4 constitute an impairment of free expression.[11] The Court made no reference, either explicit or implicit, to hate speech and paragraph 5 as grounds for possible censorship, underscoring that hate speech should be regulated like the other areas of expression provided for in paragraph 2.

39. Two Articles of the American Convention also define the “context” in which Article 13 restrictions must be interpreted.[12] Article 29 notes that no provision of the Convention shall be interpreted as “precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government” or “excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.”[13] Article 32, meanwhile, notes that “the rights or each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.”[14] The Inter-American Court has further noted that Article 29’s reference to the American Declaration implicates Article XXVIII of the Declaration, which states that “[t]he rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy.”[15] The Court has interpreted this to require that the “just demands of democracy” guide the interpretation of the Convention.[16] In light of the principles taken from Article 29, the Inter-American Court has concluded that the necessity and legality of restrictions imposed on freedom of expression depend on a demonstration that ‘the restrictions are required by a compelling government interest” that the means taken are the least restrictive of the options available, and that the restriction is “proportionate and closely tailored to the accomplishment” of a legitimate government objective.[17]

F. U.N. and European approach

40. For the purposes of comparing U.N. and European Union treaties and conventions with the American Convention, a number of basic principles on incitement to discrimination and violence can be culled from the jurisprudence of the United Nations and the European Court. These principles were outlined by the International Criminal Tribunal for Rwanda in the case of Prosecutor v. Nahimana, et. al.

41. One central principle is purpose. The ICTR noted that when the purpose behind a material’s transmission was of a “bona fide” nature–used for historical research or to convey news or information, for example–it was not found to constitute incitement.[18] In analyzing intent, the tribunals of the European and the U.N. have looked to the actual language used by the media. In Faurisson,for example, the U.N. Human Rights viewed the author’s use of the phrase “magic gas chamber” as an indicator that his comments were motivated by anti-Semitism instead of the search for historical truth.[19]In Jersild, the journalist’s efforts to distance himself from the comments of the racist youths helped lead the European Court to determine the purpose was to provide news, not spread racist views.[20] Additionally, the ICTR noted that the European Court of Human Rights, in its decisions on Turkish cases dealing with expression and national security, has drawn a line between language that explains the reasons behind terrorist activities and language that promotes such activities, and here again the language itself is important to determine where the expression falls.[21] This idea was demonstrated by Sürek (No. 1), in which a newspaper was held responsible for publishing letters from its readers containing volatile language because the Court found that it helped fuel “bloody revenge by stirring up base emotions and hardening already embedded prejudices.”[22]

42. Second, the context of the expression at issue is also important when considering the validity of restrictions on this expression. The ICTR noted, for example, that context was vital in the decision of the European Court in the Zana case–because the former mayor of a Turkish city made comments about massacres at a time when massacres were taking place, the European Court took the view that the statement was “likely to exacerbate an already explosive situation.”[23] The European Court has also factored in contexts such as the role of political expression or criticism of the government, in which there is room for more protection, and the issue of national security, in which the Court has said there is a “wider margin of apreciation” for authorities to restrict freedom of expression.[24]

43. Finally, the ICTR pointed to causation as an important principle. The ICTR noted that international jurisprudence has not required specific causation connecting “the expression at issue with the demonstration of a direct effect.”[25] In the Streicher case from Nazi Germany, for example, the publication of anti-Jewish statements was not alleged to have had ties to “any particular violence.”[26] In the Turkish cases considered by the European Court, meanwhile, the expressions at issue were not stated to be causes of particular violence. Instead, the ICTR noted that the “question considered is what the likely impact might be, recognizing that causation in this context might be relatively indirect.”[27]

44. With respect to the American Convention, these principles can serve as guideposts in demarcating how far Article 13(5)’s ban on hate speech extends. But it is important to note that the Inter-American Court regards the American Convention’s freedom of expression provisions as more “generous” than their counterparts under the European Convention and the ICCPR. The court has said that a comparison of the three shows “that the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas.”[28]This idea can be seen, for example, by specifically comparing Article 13 of the American Convention and Article 10 of the European Convention: while Article 13 contains a specific list of exceptions to the general principles established in the first paragraph of the Article, Article 10 is more general, and does not contain Article 13’s almost complete ban on censorship.

45. As a result, the U.N. and European jurisprudence should be used not as limitations on freedom of expression, but as minimum standards.[29] In this sense, the principles of intent, context and causation could prove to be useful guideposts for interpreting Article 13(5) and ensuring that it is not applied too broadly. The Inter-American system could, for example, utilize the “bona fide” distinction used in the U.N. and E.U. jurisprudence that protects hate propaganda when its purpose is for historical research or the dissemination of news and information. The European Court’s distinction between language that explains terrorism as opposed to language that promotes terrorism could also be applied to the Inter-American system. Context is also an important consideration in any general analysis of speech, given that the same phrase can have two meanings against two different backdrops–what might be benign during tranquil times, for example, may take on the qualities of incitement if the context of a civil war. Finally, the causation element may also prove useful: like its European Union and U.N. counterparts, the Inter-American system could find merit in the argument that a direct link between the speech and ensuing violence is unnecessary to justify limits on speech, given that the harmful effects can be delayed or indirect.

46. At the same time, however, the American Convention diverges from the European Convention and the ICCPR on a key point, and this difference limits the application of the jurisprudence from the U.N. and the E.U. The text of Article 13(5) discusses hate propaganda that constitutes “incitement to lawless violence or to any other similar action,” suggesting that violence is a requirement for any restrictions. The European Convention and the ICCPR, meanwhile, do not have such a narrowly drawn requirement. The ICCPR outlaws speech that incites to “discrimination, hostility or violence,” thus covering a range of speech that falls short of violence. The European Convention, meanwhile, allows for conditions and restrictions that are “necessary in a democratic society” and lists several ends that justify these restrictions, including national security, territorial integrity and public safety. The greater reach of the ICCPR and the European Convention demonstrate these two systems’ willingness to justify restrictions on speech that do not fit into the American Convention’s narrow category of “incitement to lawless violence.” It follows that while the jurisprudence of the U.N. and the EU can be helpful with the definition of “incitement” and “violence,” not all of the U.N.-and EU-backed restrictions on expression would fall under Article 13(5) of the American Convention. Some of the relevant EU and U.N. decisions restricting speech on national security grounds may be justified under Article 13(2) of the American Convention, which allows for restrictions based on national security and the maintenance of public order.

[8] See Report Nº 92/03, Elias Santana et al. (Venezuela), Annual Report of the IACHR 2003, para. 77, citing I/A Court, “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 of the American Convention on Human Rights), Advisory Opinion OC-1/82, Sept. 24, 1982 (Ser. A) Nº 1 (1982), para. 33. The report notes that Article 32 of the Vienna Convention establishes that “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”[8] Article 33.4 of that Convention specifies that “when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”